ROTH & ROTH
[2019] FCCA 2071
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROTH & ROTH | [2019] FCCA 2071 |
| Catchwords: FAMILY LAW – Parenting – unacceptable risk of harm – no time – costs. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1 |
| Cases cited: Worth & Worth (No.2) [2019] FamCFC 126 |
| Applicant: | MS ROTH |
| Respondent: | MR ROTH |
| File Number: | PAC 5442 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 13 May 2019 |
| Date of Last Submission: | 13 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Duve |
| Solicitors for the Applicant: | Caldwell Martin Cox |
| Appearing for the Respondent: | No appearance |
ORDERS
All previous parenting orders with respect to the children [X] born … 2006 and [Y] born … 2012 are discharged.
The mother shall have sole parental responsibility for the children [X] born … 2006 and [Y] born … 2012.
The children shall live with the mother.
The children shall spend no time with the father.
Pursuant to s.68B of the Family Law Act1975 the father is restrained by injunction from:
(a)Approaching the mother or the children in any way;
(b)Intimidating, harassing or verbally abusing the mother; and
(c)Denigrating the mother and the maternal family to the children or in front of the children or permitting or allowing any third party from doing so.
The father is to pay the mother’s costs in the amount of $12,770.50 within 28 days.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Roth & Roth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5442 of 2017
| MS ROTH |
Applicant
And
| MR ROTH |
Respondent
REASONS FOR JUDGMENT
These are Reasons for Judgment in respect of final parenting proceedings which proceeded on an undefended basis against the respondent father.
This is not the first time that final orders have been sought in respect of the parties’ two children, [X] who is 13 years old and [Y] who is 6 years old. Orders were made following a final hearing on 11 September 2018 (“Final Orders”), including an order restraining the father from approaching, intimidating, harassing or verbally abusing the applicant mother.
Following the making of the Final Orders, the father has continued to behave abominably towards the mother.
The mother sets out in detail the father’s behaviour post the making of the Final Orders in the affidavit(s) filed in support of final orders.
An example of the father’s behaviour is that on 13 October 2018, he was recorded by CCTV which is present in the mother’s home, to be climbing the fence to see into the mother’s backyard, attempting to open the front door and then waving and gesturing rudely into one of the cameras at the side of the house.
Specifically for example, on 23 November 2018, the father sent the mother a text message which read “You better be there slut. We will sort this out hopefully once and for all. Kids better be there today. Sick of your shit.”
In similar vein, the father sent the mother a further text message on 24 November 2018 as follows:
You not home. You can drop [X]’s gear at school on Monday or I can drop the kids at your house. Let me know brains. Are we still going to Court? Very brave. You will not stop will you shit for brains.
Further such behaviour deposed to in the mother’s affidavit(s) includes repeated use of the words “scum” in reference to the maternal grandparents, use of the term “old cunt” in reference to the maternal grandmother, derogatory terms used to describe the mother including using the terms “ugly slut”, “dumby” and “stupid”.
These are but a few examples set out in the mother’s evidence, such evidence being uncontested. The Court finds that the facts as set out in the mother’s affidavits filed 5 March 2019 have been proven on the balance of probabilities. The Court finds that family violence has been established as a result of these findings.
The mother feels threatened and intimidated by the father. The children have been detrimentally affected by the father’s threats and behaviour. The children themselves feel fearful and are intimidated by the father.
The mother does not make the current application lightly, and does not doubt that the father loves the children. However, it is evident that the father is unable to separate his extreme feelings against the mother from what might be in the children’s best interest and that his actions, since the making of Final Orders, have not been in the children’s best interest. The Court accepts that the children are at an unacceptable risk of harm if they continue to spend time with the father in accordance with orders previously made on a final basis.
In all of the circumstances, the Court finds that there are significantly changed circumstances since the making of Final Orders which warrant the making of new parenting orders on a final basis. Ultimately, any decision by this Court has to be in the children’s best interest, and the Court finds that it is in the children’s best interest for orders to be made for the children not to spend any time with the father.
The father has had the benefit of an order for time with the children pursuant to Final Orders. He has failed to comply with those orders, and has acted in a manner which is contrary to the children’s best interest.
In 2019, the father has been arrested twice as a result of his behaviour towards the mother and the children. The father has not participated in these proceedings despite being given the opportunity of doing so.
The primary considerations require the Court to weigh up the benefit of the children having a meaningful relationship with a parent against the need to protect them from harm arising out of abuse, neglect or family violence. These children are presently at an unacceptable risk of harm if they are to spend time with the father. Whilst supervision may ameliorate some of the risk, it will not do so to a sufficient degree – the father has not shown any regard for Court orders to date and long term supervision is not an appropriate order for these children given their ages, maturity and the history of time they have spent with the father. A long term supervision order is therefore not in the children’s best interest.
The mother remains the children’s primary care giver. She has been at pains to ensure that the children continued to have a relationship with the father, despite serious concerns which were raised by the mother in her evidence filed prior to the Final Orders being made. She has now asked the Court to discharge those orders as a result of the father’s behaviour. In a nutshell, despite the significant benefit of the doubt the father received by virtue of the making of the Final Orders, he has continued to behave in a manner which puts the children at significant risk of harm.
The children are still vulnerable, despite the older child now being a teenager. In one sense, this make him even more vulnerable. Both children need to be protected from the father’s behaviour which poses an unacceptable risk of harm to them.
The father has shown scant, if any, capacity to be a responsible parent. He has shown scant, if any, capacity to meet the children’s needs.
It is in these children’s best interests that there be an order for no time.
The mother seeks an order for costs. The Court finds that there are circumstances justifying the making of a costs order. The Court accepts that as a consequence of the father’s conduct she has been put to significant and unnecessary expense in respect of these proceedings. The father has retained the former matrimonial home (subject to a payment of a lump sum to the mother) pursuant to final property orders. He was earning an income as a labourer prior to his incarceration in March 2019. The father has not paid any child support and he has not provided the mother with any financial assistance for the children. It is the father’s failure to comply with orders, and indeed his breaches of orders, which have resulted in these proceedings.
The mother makes an application for costs on an indemnity basis. As the Full Court of the Family Court has recently reiterated, exceptional circumstances need to be demonstrated if an order for indemnity costs is to be made.[1] The mother has not demonstrated exceptional circumstances warranting an order for indemnity costs. It is therefore appropriate to make a costs order in accordance with the scale[2]:
[1] Worth & Worth (No.2) [2019] FamCFC 126 at [9]
[2] Federal Circuit Court Rules 2001 (Cth) Schedule 1
Reason for costs by reference to scale
Amount
a) Item 2 with respect to Initiating Application filed 7 February 2019
$2,802 + $1,120
b) Item 1 with respect to Application Contravention filed 7 February 2019
$2,241
c) Item 6 – preparation for final hearing
$4,775
d) Item 13 – daily hearing fee for 13 May 2019
$2,241
TOTAL:
$13,179
The amount of costs pursuant to the scale exceeds the costs sought on an indemnity basis. As such, only the amount sought will be awarded, this being $12,770.50.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 19 August 2019
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